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This caught my eye about the shooting yesterday at Case Western University:
The distinctive structure of the Frank Gehry-designed Case Western business school building, with hallways that dip and swerve, complicated the job for police.
"As the SWAT team entered the building, they were constantly under fire," Lohn said. "They couldn't return fire because of the design of the building. They didn't have a clear shot."
Lohn said a SWAT team engaged in "firefights" throughout the building with Halder and finally cornered him in a room. Police weren't sure when Halder was shot, but said he was apprehended without incident. [AP]
The School of Management has a website dedicated to showcasing their Frank Gehry design. I always thought that Gehry designs were mush on the outside, but I never realized that this mush also extended to the interior.
My dream is that one day CAC will have its own building, something of an Objectivist community center here in Washington, and I've often thought about how its architectural design would serve to communicate the Center's values of reason, individual rights, productivity and pride. I look at a Frank Gehry and all I can think of is a melting world--Gehry's designs are perhaps the exact opposite of what I would want to create in a building. If it can be said that a building has a soul, Gehry's twisted corridors, lopsided rooms and melting walls would seem to indicate a twisted and tortured soul. And Gehry supposedly represents the state of the art in the application of computer technology to architecture.
It's a leap, but I can't help but wonder if the building the murderer committed his rampage in helped contribute to his psychosis. It may not have, but I would not be the least bit surprised if it somehow did.
::: posted by Nicholas Provenzo
at 2:45 PM | link
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Sowell on health insurance
Thomas Sowell has produced a superb series of columns on health insurance and government regulation. In his latest installment, Sowell exposes the anti-capitalist origins of health insurance itself:
When and why did health insurance, paid by third parties, become widespread in the American economy? Like so many things that the government does, third-party health insurance grew out of problems created by previous government policies.
During World War II, the government imposed wage and price controls. This meant that employers who wanted to hire more workers were forbidden to offer higher wages to attract them. So employers started offering various benefits instead. One of these benefits was employer-paid health insurance.
Since these benefits were not taxed as income, and could be treated as a business expense by the employer, everybody seemed to be better off. But, long after the war was over and wage and price controls were gone, the idea that third parties ought to pay for health insurance continued on. Eventually the government itself got into the business of providing health insurance and now some politicians depict it as a scandal that not everyone has health insurance paid for by third-parties.
This might make some sense if third-party insurance was cheaper or better than insurance that each individual pays for directly. All the evidence is that it is just the opposite. When third parties pay, use of the insurance -- and of the medical resources that it pays for -- has skyrocketed beyond anything contemplated at the outset.
When you hear leftist politicians speak of "universal health care," what they're talking about is health insurance which everyone is forced to pay for and use. It's an egalitarian approach to medicine: universal mediocrity. In a truly capitalist system, health insurance would not exist to the extent it does in today's mixed economy. Indeed, the modern HMO was virtually non-existent before the creation of Medicare and Medicaid.
::: posted by Skip Oliva
at 1:33 PM | link
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Two-thirds is good, but Three-thirds is better
D.C. Mayor Anthony Williams is under attack on multiple fronts these days. Congress is unhappy with the high salaries of numerous city administrators. Congressional delegate Eleanor Holmes Norton had a meltdown when Williams endorsed the concept of school vouchers. The city council wants more police on the street and lower taxes. And the Washington Times is befuddled by the mayor's religious crusade to bring the Montral Expos to Washington:
Mayor Williams, who never impressed anyone as a sports fanatic in earlier years, has become increasingly obsessed with bringing baseball back to the District. So obsessed, it seems, that the mayor appears to have opened up a bidding war with himself to lure the Montreal Expos to the nation's capital.
How else to explain the mayor's recent hefty increase in public-sector support for building and financing a new ballpark? More than two years ago, as Eric Fisher of The Washington Times reminded us in yesterday's news story, Mr. Williams offered public support totaling $200 million to lure a major league team to the District. Last winter, D.C. officials provided MLB executives with a preliminary financing outline that would have limited public stadium financing to $275 million.
This week, the mayor upped the ante by more than $60 million. He has now presented the D.C. Council with a ballpark package totaling $338.7 million, which includes $40 million to fund lending reserves and $9 million in bond acquisition costs. The package also includes $15 million to renovate RFK Stadium, where the team would play its first two or three seasons while a new $436 million ballpark was constructed. The balance of the package — $275 million — would directly subsidize the construction of the ballpark, representing nearly two-thirds of its cost. Despite its disproportionate contribution, the mayor's package would unaccountably allow the team's eventual owners to defray their share of ballpark costs by the amount of the stadium's naming rights, which would generate between $2 million and $4 million per year.
The mayor's generosity with taxpayer funds may not be enough, however. Reports suggest that Major League Baseball's relocation committee wants whatever city acquires the Expos to fully subsidize the stadium for the new ownership—two-thirds just won't cut it. Keep in mind the Expos are currently owned by the other 29 Major League owners. Their goal is to sell the team for as much money as possible. If a potential buyer has to incur the costs of constructing a new stadium, that will mean less for baseball. None of this justifies MLB's blatant extortion of Washington, but at the same time Mayor Williams—who came into office with a reputation for fiscal responsibility—is the one who's playing games with public funds.
::: posted by Skip Oliva
at 1:27 PM | link
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Do it for the children!
Since taking over the FCC, Michael Powell has done some positive things, such as attempting to loosen arbitrary restrictions on media cross-ownership. But for every good thing Powell, an antitrust lawyer by nature, has done, he has also flirted with some genuinely bad ideas. The latest is his genuflecting before so-called "pro-family" groups who want the FCC to act as a censor over broadcast networks. Consider this column from Peggy Nance of the "Kids First Coalition":
Our rules run to the licensee. At some point, enough is enough." With those words, during his speech to the annual National Association of Broadcasters convention in Las Vegas earlier this month, Federal Communications Commission Chairman Michael Powell sent a shiver through the broadcasting industry. The FCC is now talking seriously about revoking broadcast licenses for egregious violations of its decency rules.
This is welcome but long overdue, and it is not by accident. FCC commissioner Kevin Martin met with representatives of a dozen pro-family organizations on March 26. The representatives emerged from that meeting optimistic that support for their position — that the FCC had to be far more aggressive in enforcing its decency standards on television and radio — is growing significantly within the commission.
Both Commissioner Martin (a Republican) and Commissioner Michael Copps (a Democrat) have been quite outspoken in recent months about the need to return to a family hour, when parents and children can gather in front of the screen and enjoy entertainment together without having their values and senses assaulted.
Both the ABC and PAX networks have begun to deliver more family-friendly programming in the first hour of their prime time lineups. This sign is encouraging as networks continue to discover that family-friendly programming can be profitable.
Nance's message seems to be: The networks will do what we think is right, but if they don't the government should force them. Kepp in mind that Nance's views do not represent the majority of Americans, or even a substantial minority. Americans are not demanding FCC censorship of broadcasters. And make no mistake, censorship is precisely what Nance is calling for. She is unhappy with network programming, and since she considers her preferences to be the "correct" ones, it follows that the FCC should implement her will.
Of course, if Nance was that upset about what the networks are airing, she could simply encourage people not to watch television. Alternatively, she could organize an effort to buy her own network.
The "family hour" scheme—essentially censoring network programs between 8 and 9 p.m.—is particularly idiotic. First, many kids are up past 9 p.m. and watching television. Second, the FCC can't regulate cable programming, so the smut will continue to freely flow 24 hours a day. Third, the networks will be forced to cater programming to a particular segment of their audience without regard for the network's own financial and programming needs. The first hour of prime-time is a major revenue generator, and losing even a fraction of that audience to cable could cost a network like NBC millions.
::: posted by Skip Oliva
at 1:19 PM | link
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Friday, May 09, 2003 :::
Does this mean there's an opening on the FTC?
The Wall Street Journal’s Jackie Colmes reports that “Bush allies” are looking at two possible replacements for outgoing budget director Mitch Daniels: White House deputy chief of staff Josh Bolten and Federal Trade Commission Chairman Tim Muris.
I have no opinion of Bolten at this time. But I definitely have an opinion about Muris. Now, I won’t launch a preemptive attack; Colmes says Muris “is said to like his current job,” and that makes sense to me. I don’t see Muris leaving a position where he has virtually unchecked power to impose his will on America’s businessmen for a job where he’d be under constant congressional scrutiny. Unless, of course, Muris is a sadist, which is a possibility given the way he’s treated recent FTC defendants.
Okay, maybe that was a preemptive attack. But, hey, Muris started it.
::: posted by Skip Oliva
at 11:18 PM | link
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The Department of Justice today announced an agreement with BB&T Corporation which requires the company to make substantial divestitures in order to resolve antitrust concerns about the company's pending acquisition of First Virginia Banks Inc.
Under the agreement, BB&T will divest 11 First Virginia bank branches and two First Virginia drive-in facilities, with about $290 million in total deposits and loans associated with these branches.
"This divestiture will ensure that banking customers in Virginia will continue to have competitive banking services available," said R. Hewitt Pate, Acting Assistant Attorney General of the Department's Antitrust Division.
In addition, BB&T has agreed that, for a period of time, it will sell or lease any of the branches closed as a result of the merger in specified banking markets to any commercial bank, as long as the bank's offer is equal to or better than any non-bank offer.
The proposed merger is subject to the final approval of the Board of Governors of the Federal Reserve System. The Department said that it will advise the Federal Reserve Board that, subject to the divestiture of specified branch offices and associated loans and deposits, the Antitrust Division will not challenge the merger.
BB&T Corporation is headquartered in Winston-Salem, North Carolina. It has consolidated assets of $80.2 billion and consolidated total deposits of $51.3 billion. BB&T is a financial holding company that conducts its principal activities through three banking subsidiaries.
First Virginia Banks Inc. is a bank holding company headquartered in Falls Church, Virginia. It has consolidated assets of $11.2 billion and deposits of $9.2 billion. First Virginia conducts its principal banking activities through eight subsidiary banks.
Here's my question: Did anyone at the DOJ ask First Virginia's customers what they wanted? Maybe they wanted to be part of the merged BB&T-First Virginia bank. Let's suppose, for argument's sake, that every customer belonging to the divested branches decide to switch their accounts to BB&T. Would the DOJ then prosecute the customers for the sake of "preserving competition"?
I'm also curious as to how the divested branches were selected. Is there some overpaid DOJ lawyer sitting down with a list of First Virginia branches saying "keep this one, lose this one..." Talk about an obvious waste of taxpayer funds.
::: posted by Skip Oliva
at 5:19 PM | link
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House OKS $550 Billion Tax-Cutting Bill
Republicans muscled a tax cut bill through the House on Friday that they said would right the teetering economy, overcoming Democratic arguments that it would swell federal deficits already expected to set a record this year.
The legislation, which would reduce taxes by $550 billion through 2013, was approved by a 222-2-3 party-line vote. The Republican-led Senate plans to vote on a similar but smaller measure next week, after which the two chambers — joined by White House officials — will negotiate a final package. [AP]
Good. But it will be interesting to see what the Senate and conference committee now does.
::: posted by Nicholas Provenzo
at 2:45 PM | link
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N.Y. Abortion M.D.'s Killer Gets Maximum
The AP reports that James Kopp, the anti-abortion sniper who gunned down an abortion doctor in his home five years ago, was sentenced Friday to the maximum sentence of 25 years to life in prison.
Kopp struck in the suburbs of Buffalo, my old hometown. The AP writes:
Kopp was lying in wait behind Slepian's suburban Amherst home Oct. 23, 1998, and fired once through a rear kitchen window after the doctor returned from a memorial service for his father. Slepian's wife and four sons were home at the time.
A suspect soon after the shooting, Kopp fled to Mexico and then Ireland before ending up in France. He is a suspect in the non-fatal shootings of four other abortion providers in Canada and Rochester between 1994 and 1997.
I, for one, am glad that there is one less madman on the streets who threatens the rights of women to control the process of their own bodies, and the health providers who attend to their needs.
::: posted by Nicholas Provenzo
at 2:26 PM | link
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Researchers at Plymouth University in England reported this week that primates left alone with a computer attacked the machine and failed to produce a single word.
"They pressed a lot of S's," researcher Mike Phillips said Friday. "Obviously, English isn't their first language."
A group of faculty and students in the university's media program left a computer in the monkey enclosure at Paignton Zoo in southwest England, home to six Sulawesi crested macaques. Then, they waited.
At first, said Phillips, "the lead male got a stone and started bashing the hell out of it.
"Another thing they were interested in was in defecating and urinating all over the keyboard," added Phillips, who runs the university's Institute of Digital Arts and Technologies.
Eventually, monkeys Elmo, Gum, Heather, Holly, Mistletoe and Rowan produced five pages of text, composed primarily of the letter S. Later, the letters A, J, L and M crept in — not quite literature.
Phillips said the project — funded by England's Arts Council rather than by scientific bodies — was intended more as performance art than scientific experiment.
Some performance. I actually visited the sponsoring group's website. I'm not sure who's more imbecilic, the monkeys, or the organizers. There are brilliant artists who have something profound to show, but England's Arts Council chooses to support this monkey business. Brilliant.
For a wonderful antidote, visit here, and see why they call themselves the "Art Renewal Center."
::: posted by Nicholas Provenzo
at 11:46 AM | link
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The FTC and me
Today, I am researching the 1998 congressional testimony of former FTC Chairman Robert Pitofsky. Pitofsky testified before the House Committee of the Judiciary in opposition to a bill that would give physicians an antitrust exemption so they could negotiate on-par with HMO's.
Reading through this testimony is like watching the Sunday morning talk shows--you just want to scream. According to Pitofsky:
The Commonwealth of Puerto Rico developed a program for providing health care coverage for the uninsured, known as the Reform, which currently covers about 30% of the population. In late 1996, the College of Physicians and Surgeons decided to take collective action in an attempt to raise their reimbursement level under the Reform, which would have raised the costs of health care to the citizens of Puerto Rico. The College ultimately called an eight-day strike, with physicians closing their offices and, in some cases, canceling elective surgery without notice. The potentially serious impact on patients of such anticompetitive behavior is obvious. The FTC and the Commonwealth of Puerto Rico jointly filed a complaint and obtained a consent agreement, under which the College and three large medical groups that contracted with the government paid $300,000 in restitution and agreed not to engage in future boycotts or unintegrated collective price fixing.
We believe that sound antitrust enforcement in situations like the one in Puerto Rico has been a major factor in permitting the emergence of alternative health care arrangements that today vie for the patronage of consumers, private employers, and government purchasers. Although health care markets have changed dramatically over time, and continue to evolve, collective action by health care providers to block innovation and interfere with cost-conscious purchasing remains a significant threat to consumers. The prospect of effective antitrust enforcement therefore continues to be a crucial, positive influence on the marketplace which encourages better responses to consumer demands for high-quality and cost-effective health care.
The FTC's antitrust enforcement is a positive influence on the marketplace if you believe that doctors have no right to barter a better deal with those who pay them.
Let's look at it this way: a group of doctors, professionals committed to medical excellence, decided to walk out of their jobs rather than carry on with the status quo. They exercised the principle that their work belongs to them and they have the right to control their financial destiny. For that crime, they were sacked with a $300,000 fine and ordered never to exercise their interest collectively again.
How does this help consumers? Myopically, it leads to artificially lower prices, but long term, it leads to the destruction of the healthcare profession. You can not consistently pay the members of a profession less than what they are worth and expect them to continue to work or for new talent to come into the profession. Antitrust enforcers continuously prattle on about how they enforce low prices and innovation in the name of consumers. By definition, they can not. Antitrust enforcers only have the power to use force, and force does not treat a single patient or develop a single cure.
Antitrust is nothing more than nonsense on stilts, but what amazes me is that some people say we must negotiate with the FTC and that we can't go in demanding up front that they respect the businessman's right to his work. I freely accuse the FTC of being ignorant and shortsighted, but maybe that judgment deserves to be directed toward other targets.
::: posted by Nicholas Provenzo
at 11:04 AM | link
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Thursday, May 08, 2003 :::
Simply Semper Fi
Roger Roy with the Orlando Sentinel has a motivating article on his time as an embedded reporter with the Marines in Iraq.
It certainly made this old veteran wish he had never left the Corps.
::: posted by Nicholas Provenzo
at 11:21 PM | link
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Thanks to Yuen Liang, who sent this WSJ article to me:
Patients Face Cancellations, Delays As Doctors Protest Insurance Rates
By ALEX FRANGOS Staff Reporter of THE WALL STREET JOURNAL
For months, physicians around the country have been protesting the skyrocketing cost of malpractice insurance. Now, patients are starting to feel the impact.
Over the past week, in an escalation of tactics, between 5,000 and 6,000 Pennsylvania physicians either refused patients or shut their offices down completely in protest. In Jacksonville, Fla., about 100 surgeons and obstetrician/gynecologists shut down their offices on May 3, forcing public health officials to open an emergency operations center to coordinate care. That is a strategy usually reserved for hurricanes.
More doctors will be away from their offices as part of protests planned for Illinois, New York state and Washington state. A rally of as many as 5,000 physicians is expected to close many offices next week in New Jersey. . .
It's no secret that doctors are getting the shaft in favor of trial-lawyers, and its refreshing to see them take a stand in defense of their rights. But doctors are also getting the shaft under the antitrust laws, and they need to be just as principled in that fight.
But you already knew that, don't you. :-)
::: posted by Nicholas Provenzo
at 11:37 AM | link
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A Norwegian NATO Secretary General?
Fredrik Norman hopes so. Plus, and I say this with love, she's a US flag-wearing total babe. Whoa!
::: posted by Nicholas Provenzo
at 11:24 AM | link
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US Secretary of State Colin Powell has said that trans-Atlantic divisions over the US-led war on Iraq were a thing of the past and the United Nations would play a vital role in that country's future.
Most of Powell's speech went to praising ties between the United States and the EU and within the North Atlantic Treaty Organisation.
"We are driven forward by common values," he said, "and when we disagree it is usually over means rather than the ends."
After the fall of Iraqi leader Saddam Hussein (news - web sites) last month, Powell said France would "pay a price" for leading opposition to the war in the UN Security Council.
But in his speech he explicitly mentioned neither France nor the other prominent EU critic, Germany. Instead, he said "honest, open, rigorous debate" was a virtue and "we should never seek agreement for agreement's sake."
The closest he came to criticising them was when he congratulated Eastern European candidate members of the EU who supported the war, "rather than sit back and be intimated and silent".
Powell repeated what he had told reporters at the United Nations earlier: that the United States would present a draft resolution on Iraq to other Security Council members this week.
"The United States has every expectation that the United Nations will play a vital role," he said, without giving details.
The UN will play a vital role in the rebuilding of Iraq? The differences over Iraq were over means, not ends? Powell's statements are complete and utter BS. France and Germany's anti-US position was a vote for impotence in the face of a bloody dictators. And remember all those stupid protests in Europe where the US was portrayed as worse than Iraq? That's about as big a difference as one can fathom.
Why is Colin Powell throwing these people bones? Talk about moral appeasement. And you know what, I blame President Bush. There is no reason for the US to be kissing the asses of our European foes. Contempt for France and Germany in the US remains at unprecedented levels. The President needs to reign Powell in and have the courage to say that the US judges both principle and deeds in deciding who its allies are.
I can't help but wonder if this is all designed for soccer moms, who hate conflict of any stripe. Sure, we hate our European foes, and we will quitely act against them, but publicly, it's all nicey nice. I can't imagine anyone outside of the US respecting such a policy.
::: posted by Nicholas Provenzo
at 10:52 AM | link
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The European Union's foreign policy chief asked the United States on Wednesday to deal with Europe as a whole rather than pick out individual allies because they happened to agree with U.S. policies.
Javier Solana, speaking at a dinner alongside Secretary of State Colin Powell, said in many areas the United States could best obtain what it wants from Europe by dealing with the European Union collectively.
'The European Union is more than the sum of its parts. Therefore, I am concerned when I hear ... influential voices asking whether the United States would be better served by disaggregating Europe,' he told the Foreign Policy Association.
'Such an approach would not only contradict generations of American wisdom, it would also be profoundly misguided,' he said.
Solana's remarks reflected European fears that splits in Europe over the U.S. invasion of Iraq in March would drive Washington away from its policy of encouraging European unity and integration.
It's not the US that split Europe--it's France and Germany that split Europe by failing to support the removal of a bloody dictator despite UN promises to the contrary. And now the US is supposed to put Europe back together again? Old Europe is broke and deserves to wither in isolation. We owe it nothing.
I think there are limits to American generosity, or at least their ought to be.
::: posted by Nicholas Provenzo
at 10:33 AM | link
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But I love America, and what it has done to the rest of the world
Margaret Drabble hates America and "what it has done to the rest of the world" because, among other things, our warplanes have shark teeth painted on them. I, for one, like the shark teeth, which I'm pretty sure go all the way back to the Flying Tigers. They say to me, "screw with the US, and we're going to bite you in the posterior."
That's not the best part though--it gets even better.
"I detest American imperialism, American infantilism, and American triumphalism about victories it didn't even win.
On April 29, 2000, I switched on CNN in my hotel room and, by chance, saw an item designed to celebrate the 25th anniversary of the end of the Vietnam war. The camera showed us a street scene in which a shabby elderly Vietnamese man was seen speaking English and bartering in dollars in a city that I took to be Ho Chi Minh City, still familiarly known in America by its old French colonial name of Saigon.
"The language of Shakespeare," the commentator intoned, "has conquered Vietnam." I did not note down the dialogue, though I can vouch for that sentence about the language of Shakespeare. But the word "dollar" was certainly repeated several times, and the implications of what the camera showed were clear enough.
The elderly Vietnamese man was impoverished, and he wanted hard currency. The Vietnamese had won the war, but had lost the peace.
Somebody please hand this poor pathetic woman a hankie.
::: posted by Nicholas Provenzo
at 12:08 AM | link
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Wednesday, May 07, 2003 :::
But on the other hand. . .
One thing has been nagging me this week. Are tax cuts without corresponding cuts in government spending just another form of Keynesism? This from none other than Henry Hazlet:
John Maynard Keynes was, basically, an inflationist. This has not been clearly recognized because he never spelled out, step by step, the consequences of his proposed remedy for unemployment and depression. That remedy was deficit spending by the government. He recognized that increased government spending paid for by equally increased taxation would not "add purchasing power." The increased taxation would offset any "stimulus" that the increased government spending would provide. What counted, he confessed, was the government deficit. But he failed to take his readers beyond this step. How would that deficit be financed? Either the money would have to be borrowed, or new (paper) money or credit would have to be created. But if the money were borrowed, then the previous spending stimulus would be reversed by a deflation when the borrowing was repaid. The only thing to prevent this reversal would be to allow the new spending to remain outstanding. In other words, the Keynesian solution to every slowdown in business or rise in unemployment was still another dose of inflation.
There is no such thing in my mind as a bad tax cut--any attempt to return money to those who produce it is something I support automatically. But if the goal of the Bush tax cuts is to spark the economy, doesn't the president need to be just as aggressive in cutting government spending, or ultimately, the tax cuts are for nought?
What do you think? I'd like to know.
::: posted by Nicholas Provenzo
at 7:37 PM | link
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The Senate's Republican tax writers struck on agreement Wednesday on a dividend tax cut, ensuring that a scaled-back version of President Bush's call to eliminate such taxes entirely for shareholders will win support in the Senate Finance Committee.
The proposal combines elements favored by GOP moderates and conservatives. Shareholders would not pay taxes on the first $500 of dividend income. Committee Chairman Charles Grassley, R-Iowa said that covers the 86 percent of taxpayers who receive dividend income. . .
. . .The redrafted dividend tax cut won support from Sen. Olympia Snowe, R-Maine, who had forced Republicans to bargain for a smaller dividend tax cut. It is still opposed by Democrats on the panel.
A Republican who doesn't wholeheartedly support a tax cut is like a fish that doesn't wholeheartedly support water. Sure, this tax cut favors 86% of taxpayers who receive dividend income, but frankly, it's that other 14% who really drive the US economy. I wonder when those in Washington are going to catch wind of that minor fact.
::: posted by Nicholas Provenzo
at 7:27 PM | link
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On the hill
Skip Oliva and I met today with the staff of Congressman Ron Paul (R-TX), the sole sponsor of the H.R. 1247, the liberation of physicians from antitrust bill. There are some issues we disagree with Rep. Paul, but he is 100% right on exempting physicians from antitrust. The gist of our meeting:
• The Center will continue to build a coalition of doctors, concerned citizens, and trade associations in support of H.R. 1247. • The Center seeks a House hearing on the Federal Trade Commission's enforcement of the antitrust laws against physicians. We want our experts to provide testimony at that hearing detailing our year-long observations of FTC antitrust enforcement against physicians, and we are able to provide compelling witness testimony from individual victims of the FTC investigation and consent decree process.
Now comes the hard part--getting this bill though committee. I'll be setting up meetings with relevant members of the House Judiciary Committee for next week. It would be nice if I had the funds to get our Legislative Action Center running so we could orchestrate an e-mail campaign. Maybe you can help with that.
We have nowhere to go but up on this issue, and I look forward to translating our principles into actual government practice.
::: posted by Nicholas Provenzo
at 6:10 PM | link
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Tuesday, May 06, 2003 :::
Microsoft settlement of the day
Need some new computers for your school? Sue Microsoft:
Microsoft Corp. has reached a $12.3 million settlement with Montana consumers who accused the computer software giant of violating the state's antitrust and unfair competition laws.
The agreement, disclosed Monday, requires payments be made in the form of vouchers that can be used toward purchases of computers and software. Half of any money remaining after a four-month period for those claims will be offered to the state's poorest schools for hardware, software or training.
Microsoft estimated that 325 Montana schools, with total enrollment of 38,325 students, will be eligible for leftover settlement proceeds.
Linda McCulloch, state superintendent of public instruction, said the benefit to Montana schools is badly needed.
''All our schools are facing daunting budget problems,'' she said. ''This settlement is most welcome and will be put to good use in classrooms across Montana.''
Jennifer Hendricks, one of the Helena attorneys behind the lawsuit, said schools are all but certain to get something from the settlement since it's unlikely all the money will be claimed by consumers.
Montana's schoolchildren won't just be getting free computers, they'll be getting a valuable lesson: If someone has something you want, you should just take it from them by force. I suppose this is easier than actually teaching students about individual rights and capitalism. That would require actual intellectual effort.
::: posted by Skip Oliva
at 9:51 PM | link
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The Businessman's Self-Defense Kit
Here's the text to my speech before the doctors of the Colorado Medical Society at their conference "Physicians are Not Criminals." Not all of my speech was written out, but I think you will get the main theme nevertheless. And thanks again to the Colorado Medical Society for giving me the opportunity to address their members.
::: posted by Nicholas Provenzo
at 9:44 AM | link
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Monday, May 05, 2003 :::
Madigan v. Telemarketing Associates
This morning the Supreme Court unanimously reinstated a fraud lawsuit brought by Illinois Attorney General Lisa Madigan against a telemarketing firm, Telemarketing Associates, Inc. Madigan seeks to try Telemarketing Associates over the company’s charitable solicitation practices, which she says involves lying to potential donors over how much of their contribution is actually used for charitable purposes.
Within the nonprofit community, it’s well understood that telemarketing campaigns yield only a small percentage of contributions to the actual organization. Most of the contributions—85% in the Telemarketing Associates case, allegedly—are retained by the telemarketer as fundraising costs. Despite the low rate of return, many nonprofit groups willingly use telemarketing. For example, Mothers Against Drunk Driving argued in an amicus brief that simply getting their name and message out via telemarketing was just as valuable as the actual contributions received. For many other groups, telemarketing campaigns produce first-time donors who turn into regular contributors. Nonprofit telemarketing is really more about advertising the group than pure fundraising, thus justifying what sounds like high fundraising costs.
The Supreme Court has repeatedly protected these practices from state interference. For instance, the Court has ruled that a state may not arbitrarily limit the percentage of contributions an organization may pay a telemarketer. Aside from the right of voluntary contract, such actions are considered protected First Amendment activity, since the fundraising is directly related to speech interests.
In this case, however, Madigan is alleging actual fraud. She accuses Telemarketing Associates of telling potential donors that “a significant amount of each dollar donated would be paid over” to a particular charity, when in fact the telemarketers were contractually promised 85% of contributions. Since the underlying charity, a service organization for Vietnam Veterans, was looking to provide services directly to individuals, Madigan claims Telemarketing Associates’ actions should not be exempt simply because their efforts raised awareness or advertised the group’s mission.
Whether Madigan can prove her claims remains to be seen. But this appeal deals only with the Illinois Supreme Court’s decision to dismiss the case before trial. In this respect, the Supreme Court seems to have acted reasonably in reversing the lower court’s decision and remanding the case for trial. Writing for the Court, Justice Ruth Bader Ginsburg makes clear the Court is not trying to weaken the Constitution’s protection of telemarketers:
The Illinois Supreme Court in the instant case correctly observed that “the percentage of [fundraising] proceeds turned over to a charity is not an accurate measure of the amount of funds used ‘for’ a charitable purpose.” 198 Ill. 2d, at 360, 763 N. E. 2d, at 298 (citing Munson, 467 U.S., at 967, n. 16). But the gravamen of the fraud action in this case is not high costs or fees, it is particular representations made with intent to mislead. If, for example, a charity conducted an advertising or awareness campaign that advanced charitable purposes in conjunction with its fundraising activity, its representation that donated funds were going to “charitable purposes” would not be misleading, much less intentionally so. Similarly, charitable organizations that engage primarily in advocacy or information dissemination could get and spend money for their activities without risking a fraud charge. See Schaumburg, 444 U.S., at 636—637; Munson, 467 U.S., at 963; Riley, 487 U.S., at 798—799.
The Illinois Attorney General here has not suggested that a charity must desist from using donations for information dissemination, advocacy, the promotion of public awareness, the production of advertising material, the development or enlargement of the charity’s contributor base, and the like. Rather, she has alleged that Telemarketers attracted donations by misleading potential donors into believing that a substantial portion of their contributions would fund specific programs or services, knowing full well that was not the case. See supra, at 4—5, 15. Such representations remain false or misleading, however legitimate the other purposes for which the funds are in fact used.
We do not agree with Telemarketers that the Illinois Attorney General’s fraud action is simply an end run around Riley’s holding that fundraisers may not be required, in every telephone solicitation, to state the percentage of receipts the fundraiser would retain. See Brief for Respondents 14—19. It is one thing to compel every fundraiser to disclose its fee arrangements at the start of a telephone conversation, quite another to take fee arrangements into account in assessing whether particular affirmative representations designedly deceive the public.
My only concern is that this decision may embolden other state attorneys general (arguably the group of politicians most hostile to individual rights in America) to initiate sham fraud cases against telemarketers and other direct marketing professionals. As we’ve seen from the Federal Trade Commission’s imposition of the Do Not Call list, direct marketers have become the new cash cow for regulators eager to leach off someone. At the same time, however, the Court today did it’s job by properly ruling on the case before it. And possibly with an eye towards my concerns, Justice Antonin Scalia (joined by Justice Clarence Thomas) issued a short concurring opinion which further clarifies the Court’s narrow ruling:
The question presented by the petition for certiorari in this case read as follows: “Whether the First Amendment categorically prohibits a State from pursuing a fraud action against a professional fundraiser who represents that donations will be used for charitable purposes but in fact keeps the vast majority (in this case 85 percent) of all funds donated.” Pet. for Cert. i. I join the Court’s opinion because I think it clear from the opinion that if the only representation made by the fundraiser were the one set forth in the question presented (“that donations will be used for charitable purposes”), and if the only evidence of alleged failure to comply with that representation were the evidence set forth in the question presented (that the fundraiser “keeps the vast majority (in this case 85 percent) of all funds donated”), the answer to the question would be yes.
It is the teaching of Riley v. National Federation of Blind of N. C., Inc., 487 U.S. 781, 793 (1988), and Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 966 (1984), that since there is such wide disparity in the legitimate expenses borne by charities, it is not possible to establish a maximum percentage that is reasonable. It also follows from that premise that there can in general be no reasonable expectation on the part of donors as to what fraction of the gross proceeds goes to expenses. When that proposition is combined with the unquestionable fact that one who is promised, without further specification, that his charitable contribution will go to a particular cause must reasonably understand that it will go there after the deduction of legitimate expenses, the conclusion must be that the promise is not broken (and hence fraud is not committed) by the mere fact that expenses are very high. Today’s judgment, however, rests upon a “solid core” of misrepresentations, ante at 16, that go well beyond mere commitment of the collected funds to the charitable purpose.
::: posted by Skip Oliva
at 1:52 PM | link
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Free minds and... free operating systems?
A German city government decided to abandon Microsoft and embrace Linux:
[Schwaebisch Hall] is the first city in the world to do that, say local officials, who note the switch will save money, improve security and end dependence on one supplier.
Such companies as Deutsche Telekom and 7-Eleven, as well as government agencies in Germany, France, the United States and other countries, are relying increasingly on open-source software for heavy data lifting, mostly on servers that do Internet and database work.
But Schwaebisch Hall's decision to adopt the software for everything represents a breakthrough, said SuSE, Germany's leading Linux distributor, which swung the deal to make the switch.
SuSE credits the move to its user-friendly Linux desktop products, which make it palatable to the average computer user who wants only to deal with a graphical Windows-like interface.
"This is the first customer that has said, 'This is the platform that our future is going to be taking shape with,' " said Stefan Werden, a senior SuSE sales engineer.
I take no position on the city’s decision, but there was one quote that struck me as odd. The head of Schwaebisch Hall’s local college implied there were “higher principles” at play in the Linux switch:
"As a democratic society, we should not support monopolies," he said, adding a gentle dig, "Freedom of choice — it's the American way, isn't it?"
Um, if you’re freely able to switch from Windows to Linux, then Microsoft can’t be a monopoly, since that requires, well, a monopoly. Nor does it follow that “democratic” principles require one to shun a successful company merely for being successful. And isn’t it a bedrock of “democratic” societies like Germany to have the state monopolize large sectors of the economy?
If you want to switch to Linux for cost reasons, more power to you. But don’t argue that an operating system reflects a nation’s political or moral values. If that’s the terms of the debate, I’ll side with capitalists like Microsoft 100 times out of 100.
::: posted by Skip Oliva
at 1:20 PM | link
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'The SARS will surely be conquered by our government under the leadership of the Communist Party of China'
I wager the communist fist of rage will be rather inneffective against viruses.
::: posted by Nicholas Provenzo
at 1:12 PM | link
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CMS After-Action Report
My weekend at the Colorado Medical Society's "Physicians are Not Criminals" conference in Vail was outstanding. I finally was able to meet face to face with many of the physicians and IPA's CAC has defended in its FTC comment letters for the past year, and I think my speech motivated the doctors to finally start defending their rights with the full vigor they deserve.
It's hard to describe the feeling one gets when you meet a woman like Marcia Brauchler, an intense and uncompromising 31 year-old woman with a newborn child and who earns less than $30,000 helping doctors negotiate their fees with insurance companies, or Dr. Andy Fine, a quietly serious doctor who loves practicing medicine in Colorado, but wonderers how much longer he can afford to do so under the weight of all the regulations he faces. The government has named both a coercive threat to "consumers" in antitrust actions. These people are wholly innocent--and more that that--they are heroes. I say the government has become a coercive threat to them. The thought of it makes me sick, and that's a feeling I'm going to keep with me until these victims get the protection they deserve.
Two antitrust enforcers were also in attendance at the conference. Assistant Director Jeff Brennan from the FTC's Bureau of Competition was there, as well as Mark Toby, the Texas antitrust section chief. Brennan came right out and said it—his mandate is to protect "consumers." During the Q&A, I asked him the following question:
"You said in your speech that "competition" was the "bedrock of our economy." Why didn't you say that the principle of individual rights was the bedrock of our economy?
It seems that you hold a consumer has a right to his interest (i.e. low healthcare prices) but none of the doctors here have a right to their interest (i.e. all the remuneration the market will bear).
Why does a consumer have a right to the unearned (that which he is unwilling to pay for), but a doctor has no right to what he earns (that which others freely pay him?)"
Assistant Director Jeff Brennan was unable to answer my question. He simply re-iterated that competition was foundational, but did not articulate why. I might as well have been speaking to him in a foreign language.
This is why, despite all the advice doctors have been receiving, they can not hope to comply with antitrust, or hope to negotiate a better bargain with antitrust enforcers. Antitrust enforcers to not recognize their right to the wealth they freely earn. Antitrust enforcers label simple business practices as criminal and relegate the pursuit of one's happiness to an economic ghetto. The doctors are slowly coming to realize that this needs to be fought.
So as Skip mentioned earlier, I was pleased that the line from my speech that got the best reaction was, "Millions for defense, but not one cent in tribute." I'm not sure, but a think I even got an "amen."
I will transcribe my speech for the web later today, and I'll post the link as soon as I can.
::: posted by Nicholas Provenzo
at 11:49 AM | link
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The Price of personal responsibility
First Larry Eustachy, now Mike Price. The University of Alabama fired Price as head football coach, just five months after hiring him away from Washington State University. Price’s transgression was misbehaving while representing Alabama at a golf tournament. The married coach not only spent hundreds of dollars tipping an “exotic dancer” at a local “men’s club,” but also invited another strange woman back to his room, where she proceeded to run up $1,000 in room service while Price played golf. There’s probably more the public hasn’t been told, but Alabama officials saw enough to dismiss Price before he even coached a game. In retrospect, Price is probably berating himself for never actually signing his contract. That probably means he won’t be getting much of a severance package, even for five loyal months of service.
If you’re looking for a theme to connect the downfalls of Messrs. Eustachy and Price, the Washington Post’s Sally Jenkins seems to have found it:
A coach doesn't have to be a paragon, but what's he doing with a "Natty" Light in his hand, drinking with kids who will be "worshipping the porcelain god" or "talking to Ralph on the big white telephone" by the end of the night? The undergrad sensibility is irreverent in students, but in a head coach it's darker. Here's why. I asked a college-age acquaintance of mine, a smart-aleck Georgetown guy, who he would rather have as head coach: [Georgetown head coach] Craig Esherick or Larry Eustachy? He said, "Eustachy in a heartbeat. All Esherick does is graduate players. All Eustachy does is win games and hook up with hotties."
You see the problem. And here is a fact: One of Eustachy's players was arrested for being facedown drunk on a sidewalk and another for drunk driving.
The coaching profession should take notice: Grown-ups are running this country again. Whether you like the fact or not, people such as Donald Rumsfeld and Dick Cheney are in charge, responsibility is the new chic and there is extremely low public tolerance for overserved boyish high jinks from people who are paid to be leaders. At least some of the outrage at Eustachy is a result of the fact that he is the highest-paid state employee in Iowa, with a salary of $1.1 million, while Price was offered a seven-year, $10 million contract at Alabama. One of the expectations attached to that money is that a leader will make hard decisions and stand up to accept the credit or blame for the outcome.
One other note before closing this topic out. The debate over Price’s replacement at Alabama has taken on a racial tone, at least in the eyes of some media outlets. For instance, ESPN.com offered this profile of potential candidate Sylvester Groom, who played at Alabama for legendary coach Bear Bryant:
Croom, who has been an NFL assistant for 16 years, including the last two as the Green Bay Packers' running backs coach, was an All-American center for Bear Bryant in the mid-1970s. A Tuscaloosa native, Croom was an assistant coach at Alabama for 10 seasons (1977-86), including the Tide's 1978-79 back-to-back national-title teams. In fact, Croom won the "Commitment to Excellence" award, an honor coaches hand out every spring. A return to the Bryant roots might not be a bad thing. More important, Croom would be the first African-American head coach in the Southeastern Conference, and hiring him would prove Alabama is thinking forward, not living in the past.
Why is it “more important” that he’s black? I understand the symbolism of having a black head coach in a conference whose members once represented the most racially discriminatory schools in the country, but at the same time it’s unfair and irrational to judge Croom—or any other candidate—as possessing merit based simply on race? Nor would hiring Croom show that Alabama is “thinking forward,” not that that phrase means anything. After all, Price had no ties to Alabama’s past, yet Croom does. Shouldn’t that make Croom a less-worthy candidate than a black coach without Alabama ties? Of course not.
Just this week, Sports Illustrated published their list of the 101 “most influential minorities” in sports. Number six on the list was Notre Dame football coach Tyrone Willingham. The magazine argues: “[Willingham’s] success as Notre Dame’s first African-American coach could embolden other schools to hire a black football coach.” Huh? So the reason we don’t have more black college football coaches is because the nation’s athletic directors were waiting to see what one Catholic college in Indiana would do? Notre Dame may have a mythical past, but it’s no longer the standard-bearer in college football. That aside, it’s irrational to presume the success of Willingham will have any influence on the hiring decisions of other schools. First of all, Willingham was a successful coach at Stanford before coming to Notre Dame, yet that didn’t influence any school to hire (or not hire) a black coach. Second, the use of the word “embolden” implies college officials are actually afraid of hiring black coaches. Why would that be? Are they afraid of racist reactions on their campuses? That’s doubtful. Finally, if college administrators really are racist, as some would say, wouldn’t Willingham’s success produce a backlash that would hurt potential black coaches, rather than help them? During the segregation era, truly racist college leaders resented stories of black athletic successes, and it only emboldened these degenerates into redoubling their segregationist efforts.
But returning to Alabama: On paper, Sylvester Groom looks like a solid candidate, and I suspect Alabama will give him consideration. But Alabama must conduct a search to find the best coach for their program, and not try to pander to the (largely white) sports media and their racial fantasies. Unless of course Alabama is actually thinking: “Well if Notre Dame can hire a black coach...” If that’s the case, we’re all doomed.
::: posted by Skip Oliva
at 3:35 AM | link
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A pirate, a Frenchman, and an FTC lawyer walk into a bar...
In his speech to the Colordao Medical Society yesterday, Nick Provenzo invoked the historical cry, "millons for defense, but not one cent for tribute!" This led to a disagreement between the two of us over the slogan's origin. Nick claimed it originated with the American war against the Barbary pirates under Thomas Jefferson's administration, while I claimed it was a retort to the French during the XYZ affair. Turns out we were both right, according to Dr. Rand Fishbein of Johns Hopkins University:
As America soon learned, a policy of accommodation only encouraged the brigands of the Barbary Coast to seize more ships and to take more captives. Far from providing safe passage to American and other foreign vessels, the North African rulers remained active accomplices to the crime of piracy, taking protection money while at the same time permitting the banditry to continue.
Things were to change, however, with the election of Thomas Jefferson. In addition to his reputation as an author, scholar and principal architect of the Declaration of Independence, Jefferson also was an outspoken opponent of the practice of tribute. He saw it not only as an affront to the nation’s dignity, but also as an ineffectual response to an abhorrent practice. He argued that ultimately the policy of appeasement would fail because, in conveying weakness, it also encouraged further treachery. He was right.
Jefferson’s response to renewed attacks on American shipping was swift and uncompromising. He dispatched a squadron of three frigates and one sloop to the region. They were ordered to observe the deteriorating situation and provide whatever escort was needed to ensure the safety of American merchant vessels. By the time the frigates arrived, Yusuf Karamanli, the Bey of Tripoli, had declared war on the United States.
For the next two years the U.S. Navy conducted running operations against the Barbary pirates, attacking their corsairs and bombarding the coastal forts that sheltered them. The battle cry, “millions for defense, but not one cent for tribute” (a slogan first used during the XYZ affair of 1798), resonated with a public tired of being held hostage to bandits and oriental potentates.
The XYZ affair involved French efforts to obtain bribes from American diplomats in exchange for negotiating a treaty to stop the seizure of U.S. ships by French privateers. When word got out about the French extortion, American passions were inflamed. Legend has Charles Pinckney, the U.S. minister to France, proclaiming "millions for defense, but not one cent for tribute." This is probably apocraphyl, as Pinckney's actual exclamation was “No, no, not a sixpence." Still, the "millions for defense" line became a popular one in the early 1800s, and it was quickly applied to the Barbary pirate situation. Either way, the message is still an important one: never compromise with those who threaten your rights. That applies to pirates, the French, and the Federal Trade Commission (whom Nick was speaking about when he revived the line yesterday.)
Still, this doesn't answer the question of who actually said the line first...
::: posted by Skip Oliva
at 2:50 AM | link
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Sunday, May 04, 2003 :::
I love (Greater) New York
There's always been political tension between New York City and New York State over money. The city produces it, while the state spends it. City leaders are forced to grovel before Albany just to recover what city residents pay in state taxes for local services. It's an annoying argument that never shows signs of being resolved. But a group of New York City councilmembers think they have a solution—secession:
City Councilman Peter F. Vallone Jr. has introduced a bill to explore the city's secession from the state. He says it offers the city a way to become less dependent on a state that takes $3.5 billion more each year from taxpayers than it returns.
The quixotic notion got a hearing before a City Council committee yesterday. Several speakers addressed Mr. Vallone's bill, which would create a commission that would examine secession and decide whether to hold a referendum on the matter.
"Every day Albany gives us another reason to just go our way," Mr. Vallone said. The latest example, he said, is the budget being drafted in Albany, which he called "another sham."
"They're giving us the ability to increase taxes on New York City residents at a time when we already pay too much in taxes."
Nobody's holding their breath for this idea, yet it does have its merits. An independent New York City—dubbed "Greater New York" in Vallone's bill—would likely enjoy greater governmental efficiency. But whether this translates into lower taxes and a greater protection of individual rights (remember those?) remains to be seen. Given the New York City's government current inability to avoid micromanaging the lives of its citizens, I'm far from convinced that Greater New York would be all that greater. Paul Blair, for instance, points out that the city's complaints about being exploited by the state have a certain irony:
Here again, the left is arguing on our terms. If people keep thinking like that, sooner or later they will reach the conclusion that the government shouldn't be used to sacrifice anybody to anybody else.
Then there's the political nightmare a serious secession movement would bring. Dividing a state in two isn't as easy as it sounds. First city voters would have to pass a referendum. Then there would be a commission to study the question and hold hearings. Next the Commission would propose a state constitution and submit it to the voters. If that's approved, then the New York State legislature would have to adopt legislation permitting the city to "disengage and separate" from New York. Then Congress would have to admit the new state. Then of course there's the technical matter of actually separating the two states. Just drawing the new border with chalk could take years, especially if the job is given to union contractors!
Keep in mind, even if every New York City resident votes for secession, the rest of the state retains veto power. Article IV of the Constitution commands "no new states shall be formed or erected within the jurisdiction of any other state" without the consent of the affected state's legislature. The only exception to this rule was West Virginia, which was admitted under constitutionally dubious circumstances in 1863. West Virginia of course was originally part of Virginia. After Virginia seceded, a number of western Virginia counties opposed to that secession formed their own government, which claimed authority over all Virginia. After everyone realized the Civil War was going to take awhile, President Lincoln and the Radical Republican Congress (not to be confused with today's Extremist Republican Congress) finally decided to acknowledge political reality and admit West Virginia as a separate state.
There are two other cases of states being formed from existing states. The first was Vermont, which following its acquisition by Britain in the 1760s found itself constantly claimed in the name of New York and New Hampshire. The Revolutionary War didn't settle the problem, and Vermont actually managed to obtain its independence for awhile, functioning as an independent republic until becoming the 14th state.
The other example—and the only case of peaceful intrastate secession—was Maine. Originally part of Massachusetts, Maine residents continually longed for their own state government. After five referendums, Maine voters finally petitioned the legislature for the right to secede. Massachusetts acquiesced, and Maine was permitted to draft a constitution for Congress' consideration. As it turned out, Congress was more than happy to admit Maine as part of the 1820 Missouri Compromise, under which Missouri was admitted a slave state, while Maine was admitted as a free state, thus maintaining the fragile balance of power within the union.
Presumably, such balancing won't be a problem should Greater New York face admission. After all, the non-city part of New York is staunchly Republican, while the five boroughs are staunchly Democrat. Politically, they'd cancel each other out.
::: posted by Skip Oliva
at 11:04 PM | link
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Colorado's voucher scheme
Colorado made news last month when they became the first state to adopt a school “voucher” program in the wake of the Supreme Court’s decision to uphold the general constitutionality of such programs. Upon initial examination, however, Colorado’s “Opportunity Contract Pilot Program” isn’t necessarily a great leap forward in dismantling the government-school monopoly. Indeed, several features of the bill may provide an opening for greater regulation of private schools without benefiting the majority of students.
Granted, the Colorado bill expressly establishes a “pilot” program, which implies it’s experimental in nature. But right off the bat, the bill takes a questionable action in limiting its scope to a relative handful of students. In the legislature’s statement of intent, the bill declares:
Meeting the educational needs of high-poverty, low-achieving children in our state’s highest-poverty public schools is of the greatest importance to the future welfare of Colorado.
Consequently, the only students eligible for vouchers are those poor enough to qualify for the federal school lunch program and who have failed at least one state assessment exam. In the case of K-3 students, the school itself must have received a failing or “unsatisfactory” grade from the state.
It would have been far better if the legislature expressed their concern for the individual rights of all students, rather than harping sympathy on the poor, stupid kids. After all, there are many students who are fully capable of learning, but find themselves unable to achieve in the stagnant educational setting of a government school. Still, they may be motivated enough to pass the state exams, so this bill decides they’re not worth any more effort. So long as everyone is getting at least a mediocre education, the state feels morally vindicated.
Another problem with the bill is that it works through the school districts. The districts must volunteer to join the pilot program (itself an admission the district isn’t doing its job.) Following that, the districts exercise administrative control over whether private schools are eligible to accept voucher students. Now the law does set forth criteria the district must follow in accepting a school, but even here I can see some potential problems. For example, the bill forbids any private school in the pilot program from “teaching hatred of another person or group.” Granted, we don’t want state funds supporting the Klan, but I can easily see a school board manipulating the definition of “teaching hatred” to deny certain parochial schools voucher eligibility. If a parent judges a school worthy of educating his or her child, that decision should not be subject to second-guessing by local bureaucrats.
A private school that is turned down by the school district may appeal to the state itself. This makes me wonder why the state just doesn’t assume complete responsibility for certifying schools, and cut the districts out altogether. The districts created the failed system in the first place, so it stands to reason they shouldn’t be included as part of the solution.
Even after a private school is deemed voucher-worthy, however, the state remains involved through the almighty assessment tests. Schools in the pilot program must administer state-approved tests to all voucher students, and the state has the right to decide whether those students’ achievements are adequate, once again providing an unjust government barrier between student, school, and parent.
As a final insult, voucher program participation is capped by percentage. This means that no more than 4% of a school district’s students may use vouchers at any given time. Those students who are eligible are awarded slots based essentially on a lottery system, thus leaving their educational rights to mere chance.
To recap, Colorado devised a program that (1) discriminates against students based on economic status, (2) increases regulation of private schools , and (3) imposes an artificial limit on the number of students who may attempt to escape failing schools. In the end, it would have probably been better if the Colorado legislature did nothing; at least then they couldn’t tout their fake accomplishment of implementing a voucher program.
If Colorado really wanted to try something bold (and principled), it would have dispensed with the “pilot program” nonsense, and permitted every parent in the state a full tax credit to send their child to the school of their choice. Note I’m saying a tax credit, not a tax deduction. This means the full value of a child’s tuition would be taken directly from the parents’ tax payment. Given that schools are entirely a creature of taxpayer financing, this is more than fair. In the case of poor families, the state would actually pay the tuition directly to the chosen school in lieu of the credit. This would prove to be a far less costly alternative than today’s failed system, and it would benefit far more children than Colorado’s convoluted voucher scheme.
::: posted by Skip Oliva
at 6:43 PM | link
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Once a monopolist, always a monopolist
Last Sunday, 60 Minutes aired a profile of New York City Schools Chancellor Joel Klein. You may remember Klein from such antitrust cases as "Microsoft: the Silent Killer," and "Breaking the Glass Trust Monopoly." As head of the DOJ's antitrust division under Bill Clinton, Klein was a merciless anti-capitalism, always confidant in the ability of antitrust lawyers to run the economy over the objections of actual businessmen. Yet now that he's running the New York City schools—arguably the nation's largest and worst-run monopoly after the Postal Service—Klein seems to have experienced a conversion to the wonders of business thinking. Lesley Stahl reports:
STAHL: The mayor is at heart a businessman. He's running the city, and the schools, much like his old corporation, even moving out of his private office at City Hall and into an open bullpen like the one he used at Bloomberg News. He's ordered Klein and his people to work the same way and to adopt his business battle cry: no frills; be efficient and eliminate duplication.
Mr. KLEIN: Think of these 40 districts we're talking about. They're all buying their own books. You think they're getting bulk purchasing rates on that? We can save real money here, and we need it for our kids.
Just a few years earlier, Klein considered Microsoft's efficiency to be evidence of illegal activity. Indeed, the antitrust lawyer's mantra is that competition is a primary value, and efficiency is only good when one company doesn't get too good at it. Then again, competition isn't a problem for Klein, since it's essentially impossible to compete with the New York City schools. Unlike Microsoft, Klein has the ability to force parents to enroll their children in public schools (via truancy laws.) And for all the talk of running the schools like a business, they're not. A business survives when it makes profits by persuading customers to purchase its goods. The government schools survive by simply taking what they want. Klein doesn't seem to appreciate that difference, which shows that ideologically he's the same now as he was at the Antitrust Division. In the end, Klein doesn't trust in people's ability to run their own lives (and economy) without his Divinely imparted wisdom.
::: posted by Skip Oliva
at 1:15 PM | link
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The Pledge heads back to court
Earlier this week Solicitor General Ted Olson filed a petition with the U.S. Supreme Court seeking reversal of the Ninth Circuit’s now-infamous Pledge of Allegiance ruling. The appeal, captioned United States v. Newdow, asks the Court to consider whether the words “under God” in the Pledge violate the First Amendment’s Establishment Clause, and additionally whether Michael Newdow had standing to challenge the Pledge in the first place.
The standing issue is actually more fascinating than the Pledge question. Newdow sued the federal government and his daughter’s public school district, arguing that the “under God” words were facially unconstitutional, and that the school’s policy requiring the Pledge’s recital violated his daughter’s First Amendment rights. The problem, at least according to the Solicitor General, is that Newdow does not have legal custody of his daughter. Newdow never married the child’s mother, and a California custody order granted the mother “sole” custody, although Newdow retains limited parental rights, including the ability to “consult” on “substantial” decisions regarding the daughter’s education.
In the Ninth Circuit, the mother unsuccessfully sought to intervene, arguing neither she nor her daughter contest the Pledge’s constitutionality (indeed, a recent news report indicates the daughter continues to recite the Pledge at school voluntarily.) The Solicitor General considers the mother’s position dispositive towards Newdow’s standing:
Where, as here, the two parents disagree on an educational practice, the decision of the custodial parent controls and Newdow has no right to overturn it. If, as the non-custodial parent, Newdow believes the mother’s educational decisions are causing harm to the child, the proper remedy is for him to resort to family court and seek a modification of the custody agreement. He cannot use federal litigation to circumvent that state-law process or to modify state-law custody judgment.
On the other hand, Newdow is alleging an ongoing violation of his daughter’s constitutional rights. This in and of itself may constitute a substantial enough interest to justify the father’s standing. But it’s far from clear. For one thing, if a noncustodial parent can assert standing on a child’s behalf, then what’s to prevent a more distant relative from doing so in future cases. Standing cannot be diluted to the point where individuals are permitted to use children as plaintiffs of convenience. The Court needs to carefully consider Newdow’s standing here, although the disposition of this question need not prevent adjudication of the underlying Pledge claim. If nothing else, Newdow should possess standing to challenge the constitutionality of the wording of the Pledge itself, if not its recitation in the public schools. At the same time, Newdow’s claim to sue on his daughter’s behalf should probably be overruled.
On the Pledge issue, the Ninth Circuit was basically correct, although the reasoning is incomplete. The addition of “under God” does violate the Establishment Clause. The Solicitor General’s protests to the contrary are wholly unconvincing. The government’s central argument is that the acknowledgment of God is historical, rather than religious:
[I]n concluding that the Pledge results in unconstitutional coercion, the court of appeals failed to come to grips with this Court’s repeated recognition that the Establishment Clause permits such historic, ubiquitous, and ceremonial acknowledgments of our Nation’s religious character and heritage. Such references are not reasonably and objectively understood as coercing individuals into silent assent to any particular religious doctrine. Rather, the Pledge is“ consistent with the proposition that government may not communicate an endorsement of religious belief,” County of Allegheny, 492U. S. at 602- 603, because the ceremonial reference to God acknowledges the undeniable historical facts that the Nation was founded by individuals who believed in God, that the Constitution’s protection of individual rights and autonomy reflects those religious convictions, and that the Nation continues as a matter of demographic and cultural fact to be a predominantly“ religious people whose institutions presuppose a Supreme Being.”
This is, at best, distortion. Whether the nation’s Founders were religious—and that’s a debatable premise with regard to many of them—has no bearing on the constitutionality of placing the words “under God” in a Pledge adopted in 1942. The Solicitor General compounds his error by making hyperbolic claims such as: “Unless the Establishment Clause compels courts to root out every reference to religion in public life...” This is not the point. There are numerous contexts where religion may be referred to in governmental contexts. The Establishment Clause speaks only to actions which advance religion to the exclusion of other beliefs. If the government seeks to acknowledge the role of religion in American history, it may do so through simply teaching religious history. Putting “under God” in the Pledge, however, does nothing more than endorse religious belief in a contemporary setting without providing genuine historical context or understanding.
And this leads to the incomplete nature of the Ninth Circuit’s ruling. While that court limited its review to the “under God” terms—and indeed, that’s all Newdow challenged—requiring school children to recite the Pledge itself violates the First Amendment. This is because the Pledge amounts to compelled speech, not necessarily because it advances religion. The Pledge is a “loyalty oath,” and the government cannot require such oaths of any citizen, including children. The state’s goal in requiring the Pledge as a “daily patriotic exercise” is insufficient. There is no state interest in instilling “patriotism” in students. Patriotism is a reflection of one’s pride in country, and that is a fundamentally individual decision that cannot be produced on command by state officials.
Since the Solicitor General’s challenge is limited to the “under God” question, however, it would be improper for the Supreme Court to consider the Pledge’s constitutionality at this time. It would be sufficient for the Court to affirm the Ninth Circuit on “under God,” while also untangling the complications arising from the standing problem.
Finally, the Solicitor General’s petition makes an unusual request for the Court to “consider summary reversal” of the Ninth Circuit. This means the Court would reverse the lower court’s decision without oral argument or normal briefing procedures. Given the Court’s previous rulings upholding the Pledge, I can understand why the Solicitor General feels summary reversal may be justified here. But I would actually suggest the Court take an even more unconventional approach, and grant the petition, summarily reverse on the standing issue only, and remand to the Ninth Circuit for further proceedings. This would likely result in Newdow’s suit being dismissed, while leaving the Ninth Circuit’s core ruling on the Pledge intact.
::: posted by Skip Oliva
at 1:49 AM | link
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